Search form

Featured Topics

Protecting rights and facilitating stable relationships among federal agencies, labor organizations, and employees while advancing an effective and efficient government through the administration of the Federal Service Labor-Management Relations Statute.

You are here

United States Department of the Navy, Navy Public Works Center, Naval Facilities Engineering Command Midwest, Great Lakes, Illinois (Agency) and National Association of Government Employees, Local R7-51 (Union)

MEMORANDUM

64 FLRA No. 94

FEDERAL
LABOR RELATIONS AUTHORITY

WASHINGTON,
D.C.

_____

UNITED STATES
DEPARTMENT OF THE NAVY

NAVY PUBLIC WORKS CENTER

NAVAL FACILITIES
ENGINEERING COMMAND MIDWEST

GREAT LAKES, ILLINOIS

(Agency)

and

NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R7-51

(Union)

0-AR-4376

_____

DECISION

February 26, 2010

_____

Before the
Authority: Carol Waller Pope, Chairman, and

Thomas M. Beck and
Ernest DuBester, Members

I. Statement of the Case

This matter is before the Authority on exceptions
to an award of Arbitrator

Cyrus A. Alexander filed by the Agency under § 7122 (a) of
the Federal Service Labor-Management Relations Statute (the Statute) and part
2425 of the Authority’s Regulations. The Union filed an opposition to the
Agency’s exceptions.

The Arbitrator granted the grievance in part,
awarding the affected employees, who had been exposed to Asbestos Containing
Material (ACM): (1) annual exams at the Agency’s expense and (2) if an
employee separates from the Agency, the difference in the premium paid for an
exam while employed at the Agency and the actual cost of the exam to the
employee. For the reasons that follow, we grant the Agency’s exception and set
aside the award.

II. Background and Arbitrator’s Award

The grievants are six Agency
employees, who were assigned to the High Voltage Shop of the Utilities
Department to remove and install new cables and equipment in an area known as
“the vault.” Award at 2-3. The Agency knew that the vault area “contain[ed]
[ACM] and peeling lead paint.” Id. at 3. The Agency ordered testing,
which confirmed the presence of ACM. Id.

The Shop Foreman directed the
employees to remove the cables and ACM. Id. at 3-4. The Foreman told
the employees that only one cable out of several was ACM and that the other
material was not ACM. Id.at 3. Four of the employees worked
two days, including some overtime; one of the employees worked one day, plus
overtime; and one of the employees worked one day removing the material and
ACM. Exceptions,

Attach. 3 at 1-2. Two of the employees wore protective
clothing and respirators when removing the cable identified by the Foreman as
ACM; however, they wore only dust masks when removing other cables and
materials in the surrounding area. Award at 3-4. After the cable with known
ACM was removed, none of the employees wore full protective equipment because
they had been informed by the Foreman that the remaining material was not ACM.
Id.

As a result of an anonymous phone
call, an employer safety specialist terminated the project due to the danger
that ACM was present. Id. at 4. The Occupational Safety and Health
Administration issued fourteen specific unsafe or unhealthy working condition
violations related to the work that the employees had performed. Id.

Each of the affected employees
(hereinafter grievants) was enrolled in the Agency’s medical program for
potential ACM exposure, given an annual review, and counseled by the Agency’s
Mental Health Department regarding the incident. Id.Further,
both the Foreman and the second line supervisor were disciplined and removed
from their duties. Id.

The Union filed a grievance on
behalf of the employees. The parties were able to reach agreement on most
issues, but asked the Arbitrator to determine whether two remedies requested by
the Union -- “(1) Lifetime Medical Insurance Coverage for Physical or Mental
Illness for Employee and/or Dependants Exposed to Asbestos; and (2) Yearly
Monitoring or More Within One (1) Year by a Personal Physician, If Requested,
At No Cost to the Employee in Addition to an Annual Asbestos Surveillance
Program. Family Examinations Are to Be Included” -- had a basis in law and,
therefore, stated a claim upon which relief was available. Award at 2; Exceptions
at 3.

After briefing by both parties, the
Arbitrator concluded that it is “unequivocal that ACM was present” in the vault
area and that the full extent of the ACM, although known by the Agency, was not
communicated to the employees. Award at 5. The Arbitrator concluded that all
of the employees had been exposed to ACM. Id. The Arbitrator held that
he could not determine what amount of exposure to ACM would result in disease,
but that “prudence” requires that the employees be given annual exams at no
expense as long as they remain employed by the Agency. Id. at 5-6.
Further, the Arbitrator determined that, if an employee leaves the Agency prior
to age 65 (when Medicare applies), the employee should obtain his or her own
health insurance to pay for any examination for asbestosis, but that, if “the
premium paid for the exam [was] greater than his present premium, he should be
awarded the difference by the [Agency].” Id. at 6. Finally,
the Arbitrator held that, because it was improbable that the grievants had
exposed their family members to ACM, no family coverage would be provided. Id.

III. Positions of the Parties

A.Agency’s Exceptions

The Agency asserts that the award
is contrary to law and should be set aside because it lacks statutory authority
for the required remedy. Exceptions at 3-8. The Agency argues that it is
prohibited from “obligating funds unless those funds have affirmatively
been authorized by statute for that purpose.” Id. at 6 (citing U.S.
v. MacCollom, 426 U.S. 317, 321 (1976)) (emphasis in original).

The Agency notes that all of the
grievants are current federal employees except for one who is retired. Id. at 6. The Agency states that the grievants who are current federal employees
are covered by both the Federal Employees’ Compensation Act (FECA), which
provides medical care costs and disability payments for injured employees, and
the Federal Employee Health Benefits (FEHB), which provides health insurance
for federal employees. Id.; see also 5 U.S.C. § 8101 et seq.;
5 U.S.C. §§ 8901-8913. Further, the Agency notes that the grievant who is
retired also would be covered by FECA because his qualifying injury or illness
occurred during active federal employment. Id.This employee also
could receive federal health insurance through a system similar to the FEHB. Id. at 7. The Agency further asserts that, in the event that FECA does not apply,
the grievants could bring an action under the Federal Tort Claims Act (FTCA). Id. (citing 28 U.S.C. § 2671 et seq.).

The Agency contends that none of
these statutes provides for the remedies requested by the grievants and awarded
by the Arbitrator. Id. According to the Agency, where such a statutory
framework does not provide for the remedies sought, an Arbitrator may not read
them into the statute. Id. The Agency also argues that the Authority
previously has considered insurance similar to the remedies awarded by the
Arbitrator and found it to be “in direct conflict with the applicable law.” Id. (citing IBEW, AFL-CIO Local 1245, 31 FLRA 1002 (1988)).

In addition, the Agency alleges
that the Anti-Deficiency Act prohibits it from committing to current or future
payments when the funds are not already appropriated or available for that
purpose. Id. at 8 (citing 31 U.S.C. §§ 1301, 1341, and 1517). The
Agency contends that the Authority, in examining the impact of proposed
liability upon an Agency and the effect of the Anti-Deficiency Act, has held
that there must be “independent statutory authorization, separate and apart
from the duty to bargain imposed by the Statute . . . for the expenditures
required[.]” Id. at 8 (citing ACT, P.R. Army Chapter, 62 FLRA
144 (2007); ACT,P.R. Army Chapter, 60 FLRA 1000 (2005)).

B. Union’s Opposition

The Union asserts that the Agency’s exception involves
arguments that the Agency previously raised before the Arbitrator. Opposition
at 1. The Union further contends that coverage under FECA, FEHB, or FTCA does
not preclude a remedy awarded at arbitration. Id. at 2. Also, the Union alleges that the cases relied upon by the Agency involve Authority decisions related
to proposals in bargaining disputes, not to exceptions to arbitration awards. Id.

IV. Analysis and Conclusions

A. The award is contrary to law.

When an exception involves an award’s
consistency with law, the Authority reviews any question of law raised by the
exception and the award de novo. See NTEU, Chapter 24,
50 FLRA 330, 332 (1995) (citing U.S. Customs Serv. v. FLRA,

43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard
of de novo review, the Authority assesses whether an arbitrator’s legal
conclusions are consistent with the applicable standard of law. See U.S.
Dep’t of Def., Dep’ts of the Armyand the Air Force, Ala. Nat’l Guard,
Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment,
the Authority defers to the arbitrator’s underlying factual findings. See
id.

The Agency contends that the award
is contrary to law because it awards the grievants payment for medical costs
related to their exposure to ACM and is therefore contrary to the FECA.
Exceptions at 6-7. The Authority previously addressed this issue in NTEU,
NTEU Chapter 51, 40 FLRA 614 (1991) (NTEU). See also U.S. Dep’t of the Treasury, Internal Revenue Serv., Phila. Serv. Ctr., Phila., Pa, 41 FLRA 710 (1991).

In NTEU, the Arbitrator
determined that the grievants had been exposed to potentially toxic fumes in
their work area and that the Agency had failed to provide a safe workplace and
maintain safe and healthful working conditions. Accordingly, he ordered the
Agency, among other things, to: (1) reimburse the employees for out-of-pocket
medical care costs for illnesses associated with their exposure; and (2) pay
the reasonable cost of medical examinations to determine whether they sustained
damage due to the fumes. NTEU, 40 FLRA at 618.

The Authority determined that the
grievants were covered by the FECA.

See id. at 630. The Authority then reversed the
Arbitrator’s award as to remedies, finding that “the particular items for which
the Arbitrator ordered payment or reimbursement are within the exclusive
jurisdiction of the FECA and its implementing regulations[.]” Id.; see also 5 U.S.C. § 8116(c) (“The liability of the United States...under this
subchapter...with respect to the injury or death of an employee is
exclusive[.]”).

Like the grievants in NTEU,
the grievants here are covered by the FECA.[1]
Accordingly, the remedy of payment for medical costs incurred by employees in
this case as a result of their exposure to ACM is exclusively covered by the
FECA.

As the Authority stated in NTEU,
we “recognize that exposure to hazardous substances is a serious matter. Our
finding . . . does not ignore the potential adverse consequences flowing from
[such] exposure. . . . Employees are not left without a remedy if they believe
they have incurred an occupational illness. The provisions of the FECA

[, however,] constitute the mechanism for seeking such
redress.” 40 FLRA at 632.[2]
Moreover, our finding should not be interpreted as holding that the Arbitrator
lacked authority to hear the issues raised in the grievance or that the issues
were outside the scope of the grievance procedure. Rather, we simply find that
the remedy awarded by the Arbitrator conflicts with law.

Accordingly, we grant the Agency’s
exception and find that the award is contrary to law.

[1]
At the time NTEU was decided, 20 C.F.R. § 10.5(a)(16) provided that an
“[o]ccupational disease or illness” includes, among other things, “exposure to
hazardous elements such as, but not limited to, toxins, poisons, [and]
fumes[.]” The regulations now determine illness or injury based on the length
of exposure. See 20 C.F.R. § 10.5(q) (defining occupational disease or
illness as “a condition produced by the work environment over a period longer
than a single workday or shift”); 20 C.F.R. § 10.5(ee) (defining traumatic
injury as a “condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift”). The
grievants here satisfy the time requirements specified in the regulations. Seesupra page 2. As such, they are covered under FECA and its implementing
regulations and the principle underlying NTEU applies. See S.T., _ E.C.A.B.
_ (Docket No. 08-1675, issued May 4, 2009) (holding that claims regarding
occupational exposure to asbestos are addressed under the FECA); D.B., _
E.C.A.B _ (Docket No. 08-1199, issued March 3, 2009) (same).